No End in Sight for Critical Viacom-YouTube DMCA case

When Viacom sued YouTube in March 2007, it was clear the case would be hugely important. Not only was Viacom (s via.b) seeking damages in excess of $1 billion from Google’s (s goog) newly acquired video portal, but a ruling on the lawsuit stood to change the particular reading of copyright laws on which every single user-generated site hinges: that is, hosts are not responsible for their users’ activity as long as they comply quickly with takedown requests from copyright holders.

But it’s coming up on two years later — now with 13 hours of video uploaded to YouTube every minute — and the Viacom-YouTube lawsuit is risking irrelevance by ceasing to move forward. And as was made all too clear to me today, the wheels won’t start turning again anytime soon. Even Viacom, which you’d think would have the most interest in pinning down its foe, doesn’t seem to be doing much of anything to speed things up.

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The current setback? Sharing access to documents. Viacom is working to turn around some 650,000 requested documents by March 15th, 2009, and a further holdup in the case could mean that other documents don’t even come in by June 15th of next year. So it’s possible that depositions in the case, never mind an actual trial, could be delayed until the fall of 2009.

The suit made its way to a San Jose, Calif., court today — across the country from where it normally resides in a New York District Court — because it’s where Viacom’s copyright vendor, BayTSP, is headquartered. BayTSP polices YouTube and other sites on behalf of Viacom and clients such as Fox, HBO, and Universal. The company uses a combination of technological and human filters to find unauthorized uploads of its clients’ content. Then it files takedown requests for each one. It adds up to a whole lot of paperwork.

YouTube is requesting access to all of the paperwork — BayTSP’s methodologies, its source code, and its communication with its clients. And not just the documents related to Viacom, but rather *anything* that would show how BayTSP conducts its business. YouTube’s lawyers say this is necessary to hunt down evidence of things like rights holders uploading copies of their own work and telling BayTSP not to flag them, in order to let them be virally spread by users. YouTube also thinks BayTSP’s documents will show that YouTube runs a tighter copyright ship than any of its competitors. YouTube maintains that it has been asking BayTSP for the documents for the last year, and BayTSP is holding up the case. (Google, of course, thinks nothing of digitizing millions of documents.)

BayTSP’s lawyer Steve Hemminger pleaded in court today that YouTube’s request could be fatal to the business of “small little BayTSP” because it would require the company to give up records from clients who are not related to the Viacom case, creating an undue burden and alienating customers. He said gathering documents for the case have already cost “well over $1 million” (though he later admitted that Viacom is reimbursing BayTSP for its legal expenses). Hemminger further said he wasn’t willing to commit to a June 15th turnaround for the documents because he didn’t know how fast the third-party clients would comply.

Judge Patricia Trumbull said in a tentative ruling that she was planning to grant most of YouTube’s document requests, but that was before a lengthy discussion about the technical logistics of transferring quite so much information, who would have access to that information (and who would have access to information about who accessed the information), and who would pay for it all. She did not issue a final ruling at the hearing, but it’s expected soon.

For a case that could have such an effect on the web by essentially revising the Digital Millennium Copyright Act, the clueless finagling over technical aspects of database access was appalling.

And regardless of Judge Trumbull’s ruling on document access, the whole proceeding seemed off-kilter. Why is Viacom letting its vendor be a stick in the mud when it would clearly like to get this case on the road? My sources say it’s not because of settlement talks (which have flared up at various times throughout the case), but it’s clear someone at Viacom’s priorities have changed. Meanwhile, Hemminger insisted, “BayTSP has no interest in the outcome of this investigation at all,” and the legal counsel for Viacom present at the hearing did little to support or prod his supposed ally.

So now the most we can do is wait for the judge’s ruling, and then the next hearing, and then the next…maybe even a trial someday. And meanwhile, the world keeps turning.

Wonder if the recent licensing breakdown with Warner Music had anything to do with the Viacom. It seems like the downturn in the economy is putting YouTube into a license crunch with its biggest partners, hence Google’s investment may turn out to be a bust. This trial will certainly be the turning point for sure regarding the future of YouTube.
Another curious aspect is why Mr. Dauman chose to prosecute the same company where his son is employed, after all it could have been considered by him as a family business, and accept a lower licensing fee for the Viacom videos.